Extension of Temporary Relief from ESA Termination and Severance Provisions

On June 4, 2021, the Ontario government extended the temporary relief measures from the termination and severance provisions of the Employment Standards Act, 2000 (ESA) until September 25, 2021

The majority of our clients have kept their employees working safely during COVID, but there may be people that are still off on leave and many of those will be returning to workplaces at the end of September when IDEL appears to be ending. 

Canada life did a communication piece to explain what this means to employers (see below). We’ve included it here in the event you find yourself in this position.


IDEL extensions continue up to September 25th, 2021

Earlier this month the Ontario government announced the “deemed” Infectious Disease Emergency Leave (IDEL) COVID19 period would be extended to Sept. 25, 2021.

All employees currently on layoff in Ontario continue to be protected under the Ontario Employment Standards Act (ESA) deemed Infectious Disease Emergency Leave (IDEL). Deemed IDEL allows all in-force coverage, including disability coverage, to remain in force on a premium paying basis, until Sept. 25, 2021. Any coverage that had terminated will remain so until the end of the leave or return to work date, whichever is earlier.

If the Ontario government ends deemed IDEL on Sept. 25, then starting Sept. 26, 2021 the following will apply:

  • The Employment Standards Act (ESA) regular rules around constructive dismissal resume and an employee may be constructively dismissed, even for COVID-19 related reasons. In this case, the group coverage for the employee would be terminated.
  • The ESA regular rules around temporary layoffs resume and the temporary lay-off clock resets. Employees who can’t return to work will be considered on a temporary layoff, with Sept. 26, 2021 being the first day of the temporary layoff. In this case, the employee’s group coverage will be extended (31 days for disability and six months for all other coverage) based on the termination provision of the group contract. If disability coverage was discontinued during the deemed IDEL, it will remain in terminated status.
  • Employees can apply for regular IDEL (not deemed IDEL) if they meet the criteria. An employee’s benefits coverage, minus disability, would continue as this is considered an ESA leave.

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Enforceability Of Mandatory COVID-19 Vaccination Policies In The Workplace

As many employers begin the task of bringing staff back to the office/shop/plant, we are hearing more questions around employee and employers duties and rights. The courts have not provided clear direction (yet), but both sides of the discussion are mentioned here. Take a read.


To date, Canada’s federal and provincial governments have not introduced any legislation which would require all eligible individuals to be vaccinated against COVID-19.  However, would a mandatory vaccination policy introduced by an employer be legally enforceable?  If employees refuse to get vaccinated, would an employer be justified to prohibit the employee from attending at the workplace, to place them on an unpaid leave of absence, or to terminate their employment or otherwise discipline the employee?  In addressing this issue, there are two competing interests…

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Ontario Employers Operating in Multiple Jurisdictions – Court Rules Severance Pay Under the ESA is not Limited to Ontario Payroll

This legal case has changed how severance may be calculated if you are an Ontario Employer. Take a read to see if it affects you…


Ontario employers with a payroll of $2.5 million or more are required under Section 64 of the Ontario Employment Standards Act, 2000 (the “ESA”) to pay statutory severance pay to terminated employees who have five or more years of service.
 
In Hawkes v Max Aicher (“Hawkes”) the Divisional Court overturned an earlier Ontario Labour Relations Board (“OLRB”) decision and found that the $2.5 million threshold is not limited to an employer’s payroll in Ontario, but instead, based on an employer’s global payroll. In this context, ‘global payroll’ means the total payroll of the employer including Ontario, all payrolls in provinces outside of Ontario and payrolls throughout the world as well as the payrolls of related companies to the employer. The Court, in coming to its decision, noted that there is nothing in the provision itself that limits the calculation to Ontario payroll. The Court, to support its finding, cited previous decisions by the Supreme Court of Canada, which stand for the principal that the ESA should be characterized as benefits-conferring legislation and interpreted in a broad and generous manner in order to extend its protection to as many employees as possible.
 
This decision is somewhat surprising because it contradicts a number of OLRB decisions. Although, it is noteworthy the OLRB has essentially ignored a similar court decision from 2014. With two such decisions on the books, it will be interesting to see if the OLRB will follow Hawkes or if the legislature will amend the ESA to address the inconsistencies between the OLRB’s historical approach and cases like Hawkes.
 
Key Takeaways: We understand that this case is likely to be appealed. However, for the time being, it appears there is now more caselaw in support of the position that the severance pay calculation is based upon global payroll rather than Ontario payroll. With this in mind, Ontario employers will need to be prepared to pay severance pay where their global payroll exceeds $2.5 million annually. Strategically, Ontario employers may decide to wait until they are ordered to pay severance pay by the OLRB or a court, or simply pay it out upon termination to avoid any potential issues.
 
If you have any questions regarding this, or terminations in general, do not hesitate to reach out to speak with an e2r™ Advisor.  READ MORE
 

Ontario Extends Deemed IDEL Yet Again

The article below will explain more about the Ontario IDEL extension.


The Ontario government has once again extended the deemed Infectious Disease Emergency Leave (“IDEL”), which had been set to expire on July 3rd, 2021, and now will end on September 25, 2021.

This is good news for employers who have employees on this job-protected leave and are not prepared to bring them back in the near future but are not necessarily wanting to terminate.

This leave was first created in March 2020, retroactive to January 25, 2020, and has been set to expire and extended several times since.  If the leave does end on September 25, 2021, employees on the leave will be converted to a temporary layoff.

It is also important to note the possible constructive dismissal risks associated with this leave, which we discussed in a recent Alert found here.

READ SOURCE HERE

Ontario Employers with over 20 staff are required to do this by June 30th, 2021

Just a reminder that the AODA is coming into effect at the end of the month for Ontario employers with over 20 staff.  If you’re over 50 employees there are additional requirements.  The article below summarizes well so you can see what is required.


The Accessibility for Ontarians with Disabilities Act, 2005(the “AODA”) requires Ontario businesses and non-profits with 20 or more employees to submit an accessibility compliance report every three (3) years. Beginning in 2014, accessibility compliance reports were required to be filed in 2017 and again in 2020, but as mentioned in our previous article, the deadline to file the 2020 accessibility compliance report was extended to June 30, 2021 by the Ontario government. With the deadline now fast approaching, organizations must review any accessibility areas they need to address in order to certify compliance with AODA requirements by this new deadline (to the extent they have not already done so).

Click here to view full article. 

Ontario Employers can now obtain their Paid Sick Day reimbursement from WSIB

If you are an Ontario employer, the WSIB site is now open to submit your claim for sick day reimbursement.  Read below for more…


This is the online application for employers, allowing businesses to be reimbursed for providing paid infectious disease emergency leave in accordance with section 50.1.1 of the Employment Standard Act (ESA), 2000.

As an employer, you may be eligible to be reimbursed for payment up to a maximum of $200 per day for up to three (3) days per employee, made to an employee for paid infectious disease emergency leave taken under subsection 50.1.1(1.2) of the ESA.

https://ontario-covid19-worker-income-protection-benefit.ca/en

Attention Ontario Employers: Court confirms IDEL a Constructive Dismissal at Common Law

Just a reminder that IDEL leave will end on July 3rd. At that point, employees will be back to temporary leave and the clock will start ticking. Employers will then be faced with having to recall staff or terminate and pay severance etc.  This is a fluid situation and may be further extended (it has been several times).


A recent Ontario case (Coutinho v. Ocular Health Centre Ltd.) has confirmed what most employment lawyers had suspected – placing an employee on a deemed Infectious Disease Emergency Leave (“IDEL”) can constitute a constructive dismissal at common law.

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Ontario COVID-19 Worker Income Protection Benefit

The province has updated their website with information on their paid leave that employers (with Ontario staff) need to know about.  Read below to learn more…


Paid infectious disease emergency leave

On April 29, 2021, the Ontario Government amended the Employment Standards Act, 2000 to require employers to provide employees with up to three days of paid infectious disease emergency leave because of certain reasons related to covid 19.  This entitlement is in addition to employees’ rights to unpaid infectious disease emergency leave.

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Ontario Employer Health Tax (EHT): Canadian Tax Lawyer’s Guidance

Nothing new on this tax, but good information and a reminder of how the program works.


What is Ontario Employer Health Tax?

The Employer Health Tax is a payroll tax created by the Employer Health Tax Act in Ontario. It was originally conceived as a tax to assist with the funding of the Ontario Health Insurance Program and rolled-out over a number of years. For those businesses that pay remuneration to employees that report to work in Ontario or are paid through a business with a permanent establishment in Ontario, EHT must be calculated and remitted to the Ontario Ministry of Finance. While it is a payroll tax, unlike the CPP or EI, there is no employee paid portion; the employer bears 100% of the burden of this tax payment.

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